State v. Washington-Davis

• Decision Date: 29 June 2016
• Docket Number: No. A14–0460.,A14–0460.
• Citation: 881 N.W.2d 531
• Parties: STATE of Minnesota, Respondent, v. Antonio Dion WASHINGTON–DAVIS, Appellant.
• Court: Minnesota Supreme Court

881 N.W.2d 531

STATE of Minnesota, Respondent,

v.Antonio Dion WASHINGTON–DAVIS, Appellant.

No. A14–0460.

Supreme Court of Minnesota.

June 29, 2016.

Lori Swanson, Attorney General, Saint Paul, MN; and John J. Choi, Ramsey County Attorney, Kaarin Long, Assistant Ramsey County Attorney, Saint Paul, MN, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant State Public Defender, Saint Paul, MN, for appellant.

Cort C. Holten, Jeffrey D. Bores, Gary K. Luloff, Chestnut Cambronne P.A., Minneapolis, Minnesota for amicus curiae Minnesota Police and Peace Officers Association Legal Defense Fund.

OPINION

GILDEA, Chief Justice.

This case arises out of a sex-trafficking operation. For his part in the operation, appellant Antonio Dion Washington–Davis was convicted of soliciting and promoting prostitution and conspiracy to commit sex trafficking.¹ Washington–Davis argues that we should reverse his convictions because the statute that criminalizes the promotion and solicitation of prostitution, Minn.Stat. § 609.322, subd. 1a(1)–(2) (2014), is facially overbroad under the First Amendment. He also argues that the district court committed reversible error by giving plainly erroneous accomplice-liability jury instructions, and that the evidence presented at trial was insufficient to establish that he intentionally aided his codefendant's solicitation of two women to practice prostitution. Because Minn.Stat. § 609.322, subd. 1a(1)–(2), is not substantially overbroad, the district court's plainly erroneous accomplice-liability jury instructions did not affect Washington–Davis's substantial rights, and the evidence was sufficient to support Washington–Davis's convictions, we affirm.

The actions forming the basis for Washington–Davis's convictions occurred between September 2010 and July 2012. During this period, Washington–Davis was involved in a family-operated prostitution scheme that was run out of his uncle's house in St. Paul. Washington–Davis, his brother, Otis,² and his uncles were all involved. The men solicited women into prostitution first by pursuing romantic relationships with them. Once each relationship was established, the men would typically tell each woman that she could make a lot of money through prostitution. After luring them into the prostitution scheme, Washington–Davis or one of his family members would take photos of the women and post advertisements depicting the women online, arrange for the women to engage in sex acts for hire at the St. Paul house, drive the women to meet customers on “out-calls” away from the St. Paul house, and keep most, if not all, of the money the women made. Although each woman reported primarily to one family member, the other family members assisted with placing ads and transporting the women to out-calls. This case involves Washington–Davis's conduct with respect to five women: J.M., B.R., S.A., C.B., and T.B. Four of them (J.M., B.R., S.A., and C.B.) testified at trial.

J.M. testified that she first met Washington–Davis in 2008 and continued to work for him through 2011. Washington–Davis took photos of J.M. while she was at his uncle's house, posted the photos in online advertisements, and set prices for her services. Washington–Davis kept all the money from her performance of sex acts for hire, and he became verbally and physically abusive if she attempted to withhold money from him. J.M. twice went to the police to report she was being trafficked, once after being slapped, and again after Washington–Davis drove her outside of the Twin Cities, forced her to work out of a hotel room, took all the money she earned, and physically abused her. For his conduct involving J.M., Washington–Davis was convicted of one count of second-degree promotion of prostitution, Minn.Stat. § 609.322, subd. 1a(2), on an accomplice-liability theory.

Both B.R. and S.A. testified that they worked as prostitutes for Washington–Davis's uncle in 2010. Although B.R. gave all of the money she earned on calls to Washington–Davis's uncle, Washington– Davis assisted his uncle in posting advertisements for B.R. online. In fact, B.R. stated that Washington–Davis was “in charge” of posting advertisements for her and the other women. After Washington–Davis's uncle went to prison in 2011, Washington–Davis attempted to have B.R. work directly for him, but B.R. fled when he attempted to have her work out of a hotel. Washington–Davis would occasionally drive S.A. to “out-calls,” and continued to do so even after S.A. stopped working for Washington–Davis's uncle. For his conduct involving B.R. and S.A., Washington–Davis was convicted of two counts of aiding and abetting second-degree promotion of prostitution, Minn.Stat. § 609.322, subd. 1a(2), on an accomplice-liability theory.

C.B. testified that she was 15 years old when she and 18–year–old T.B. met Washington–Davis and his brother, Otis. C.B. explained how she and T.B. met the men, got into a car with the brothers, and went with them to Washington–Davis's uncle's house in St. Paul. Upon arriving at the house, C.B. observed three women wearing pajamas and talking on cell phones. C.B. also overheard Washington–Davis and Otis discussing how “they could probably make a lot of money” from T.B., and Otis asked both women if he and Washington–Davis could take pictures of them. Although Otis did most of the talking, Washington–Davis was present during these conversations.

According to C.B., after the discussion about taking photos, Washington–Davis left the house with two of the other women, who had since changed out of their pajamas. When C.B. asked Otis where Washington–Davis and the women had gone, Otis replied, “to go make money.” Otis then explained that “they [Washington–Davis and Otis] place ads on Backpage and that [the women] use the phones ... for the people to call them, and then [Washington–Davis] gives them a ride to where they are going.” Otis told C.B. that he initially wanted her to go with Washington–Davis and the other women, but that he and Washington–Davis decided C.B. should follow Otis and T.B. instead. Otis then brought C.B. and T.B. along with him and another woman. When the third woman went on two out-calls, Otis tried to convince C.B. to work for him. For his conduct involving C.B., Washington–Davis was convicted of one count of first-degree solicitation to practice prostitution, Minn.Stat. § 609.322, subd. 1(a)(1), on an accomplice-liability theory. For his conduct involving T.B., Washington–Davis was convicted of one count of second-degree solicitation to practice prostitution, id., subd. 1a(1), again on an accomplice-liability theory.

In 2013, a large-scale investigation of Washington–Davis and his family members revealed a shared infrastructure of telephone numbers, credit cards, e-mail addresses, and advertisements linking the Washington family to various trafficked women from 2008 to 2013. Following the investigation, Washington–Davis was charged with six counts of prostitution promotion and solicitation and one count of conspiracy to commit sex trafficking.³

Before trial, Washington–Davis argued that Minn.Stat. § 609.322, subd. 1a(1)–(2), was facially unconstitutional because it burdened a substantial amount of protected speech. The district court rejected the constitutional argument and the matter proceeded to trial. When Washington–Davis testified at trial, he admitted that he knew his uncles promoted prostitution but claimed that the women Washington–Davis allegedly “pimped” prostituted themselves without his assistance.

After the jury found Washington–Davis guilty of the six counts against him, the district court convicted Washington–Davis of each count and sentenced him to a total of 432 months in prison. The court of appeals affirmed Washington–Davis's convictions.⁴ State v. Washington–Davis, 867 N.W.2d 222, 241 (Minn.App.2015). We granted Washington–Davis's petition for review.

On appeal to our court, Washington–Davis claims that Minn.Stat. § 609.322, subd. 1a(1)–(2), is facially overbroad under the First Amendment, the district court committed reversible error by giving plainly erroneous jury instructions, and the evidence was insufficient to support some of his convictions. We address each argument in turn.

I.

We turn first to the question of whether the promotion- and solicitation-of-prostitution statute, Minn.Stat. § 609.322, subd. 1a(1)–(2) (“promotion and solicitation statute”), is facially unconstitutional under the First Amendment. This statute makes it a crime for a person, “while acting other than as a prostitute or patron,” to intentionally “solicit[ ] or induce[ ] an individual to practice prostitution” or “promote[ ] the prostitution of an individual.”⁵ Id. “Prostitution” is defined, in part, as “hiring, offering to hire, or agreeing to hire another individual to engage in sexual penetration or sexual contact.” Minn.Stat. § 609.321, subd. 9 (2014). Sexual penetration and sexual contact involve the intentional touching or intruding, however slight, “of [an] individual's intimate parts,” if the touching or intruding “can reasonably be construed as being for the purpose of satisfying the actor's sexual impulses.” Id., subds. 10–11.

Washington–Davis acknowledges that the promotion and solicitation statute may be constitutional as applied to his specific conduct. But he argues that the statute infringes on protected speech of others not before the court. Specifically, Washington–Davis contends that the statute applies to people who promote and solicit consenting adults to participate in constitutionally protected films or photographs involving sexual contact.⁶ According to Washington–Davis, not only does the statute reach individuals who hire actors to engage in sexual contact for the purpose of filming pornographic or other sexually explicit films, but it also applies to those individuals involved in production-related activities, including the transportation of actors to a film set, actor...